US Stakeholders Wary of ICANN Accountability Working Group's Jurisdiction Debate

At issue is a draft survey from a CCWG-Accountability subgroup working on ICANN jurisdictional issues as some stakeholders are pushing to partially explore moving ICANN's place of incorporation from Los Angeles. The proposed survey would include a question that asks for comment on the “advantages or disadvantages” of ICANN's remaining incorporated as a nonprofit corporation under U.S. and California law. The proposed question asks stakeholders to identify potential alternative jurisdictions for ICANN and how a new jurisdiction would support changes to the organization’s governance. The survey would ask how ICANN’s existing jurisdiction has affected domain name system activities, including stakeholder privacy, dispute resolutions and litigation.

Jurisdiction Subgroup Co-Rapporteur Greg Shatan said the survey remains in draft form and is intended to reach outside the CCWG to get a wide range of perspectives on how U.S. jurisdiction has affected interactions with ICANN. Language of three proposed questions on how ICANN’s jurisdiction has affected stakeholders’ experiences appear to be noncontroversial and received near-universal support in a poll of subgroup members. The Jurisdiction Subgroup was more divided on allowing the addition of the question on potential advantages and disadvantages of keeping ICANN incorporated in Los Angeles, with 55 percent of the subgroup’s members favoring the question's inclusion and 45 percent against.

The subgroup has focused on dispute resolution issues related to ICANN’s jurisdiction, though discussions have been “more wide ranging,” said Shatan, a McCarter & English internet and IP lawyer. Some subgroup members “would really like to put a move of ICANN’s jurisdiction on the table and do so in a way that would be seen as a viable possibility for our subgroup to make recommendations about,” Shatan said: “Some want it entirely off the table, while others say it makes no sense to talk about it now” because bylaws changes related to ICANN’s accountability mechanisms executed just prior to the IANA switchover need time to work. Shatan noted he's maintaining a neutral position on the issue as the Jurisdiction's co-rapporteur.

The most vocal CCWG-Accountability supporters of exploring a move of ICANN’s jurisdiction are based outside the U.S., including Iranian Governmental Advisory Committee member Kavouss Arasteh and Indian civil society group IT for Change Executive Director Parminder Jeet Singh. Arasteh argued Saturday that keeping ICANN subject to U.S. jurisdiction inherently favors U.S.-based stakeholders at the expense of others’ interests and is “aggressive, selfish” and narrow-minded. Singh suggested a possible compromise could involve maintaining ICANN as a U.S.-based organization but making it eligible for immunities under the International Organizations Immunities Act.

The push to revisit ICANN’s corporate jurisdiction may be politically problematic given that the jurisdiction issue was one of the issues that IANA transition skeptics in Congress highlighted last year as a reason for delaying or canceling the handoff (see 1609080076), several stakeholders said. ICANN CEO Göran Marby and others made “strong promises” to Congress that the organization would remain subject to U.S. jurisdiction after the switchover, said Phil Corwin, principal of e-commerce and IP law consultancy Virtualaw. Dredging up the issue again has the potential to bog down the Jurisdiction Subgroup’s work, which should be focused more on issues like contractual dispute resolution jurisdiction and the local jurisdiction issues that may arise in countries where ICANN maintains regional hubs and offices, Corwin said. The re-emergence of the ICANN jurisdiction issue as a potential controversy shows “folks who felt they didn’t get their way” on internationalizing ICANN’s jurisdiction before the oversight transition were “simply biding their time until the U.S. handed over its authority,” a U.S.-based executive said.

It’s understandable that some are “unhappy” with maintaining ICANN under U.S. legal jurisdiction, but proponents of moving the organization have yet to propose a “better alternative,” said Association of Internet Users founder John Laprise. “I’d be happy to see ICANN move its jurisdiction elsewhere, but it needs to be an improvement over what” the organization faces under U.S. law, Laprise said. “Ideally, we should make ICANN accountable to global legal jurisdiction, but that doesn’t exist right now.” The debate over ICANN’s jurisdiction has taken on a “vein of anti-Americanism” that's “an expected development” given the IANA handoff, Laprise said: “In some ways, this is a stalking horse” for promoting government-centric multilateral internet governance over multistakeholder governance given that some GAC members would “much prefer ICANN use the multilateral model like the ITU does.”

Corwin said he sees more progress from CCWG-Accountability’s Transparency Subgroup, circulating a draft report that would in part recommend improvements to ICANN’s internal document disclosure policy. The draft recommends limiting the ICANN board’s ability to prevent the release of information on board deliberations related to “factual information, technical reports or reports on the performance or effectiveness of a particular body or strategy, as well as any guideline or reasons for a decision which has already been taken or where the material has already been disclosed to a third party.” The report also would recommend that ICANN report lobbying activities beyond what’s required under the Lobbying Disclosure Act, including all lobbying of state and foreign governments.

Work within the Human Rights Subgroup is also “proceeding quite smoothly,” Shatan said. The subgroup has proposed a framework for interpreting ICANN’s new bylaw on human rights, which commits the organization to respect human rights within the scope of the nonprofit's mission. The subgroup managed to work through early issues to develop the framework, which itself is “fairly narrow in that it doesn’t go beyond applicable law,” Shatan said. The Human Rights Subgroup is seeking guidance on how to implement the proposed framework.